Spawn v. Fleming

McCann, J.:

The petitioner, George M. Spawn, was for many years prior to June 30, 1923, division chief in the Bureau of Canal Affairs in the office of the State Comptroller of the State of New York. This position was in the competitive civil service of the State. The petitioner received until the date above mentioned a salary of $4,000. He was an exempt fireman and entitled to all the privileges of such. On the 14th of June, 1923, the State Comptroller addressed a letter to the petitioner notifying him that after June 30, 1923, his services would be no longer needed. No charges were preferred against him. The petitioner reported for duty but was advised that there was no work to do. The petitioner instituted a mandamus proceeding by a petition and notice of motion. He alleges that the Comptroller wrongfully, unlawfully and unjustly dismissed him from his position without giving him an opportunity of making an explanation or cause being shown and asks that he be reinstated with all the salary, interest and emolument due him from the date of his alleged wrongful removal and dismissal. The return of the Comptroller admits the allegations as to the appointment of the petitioner as “ division chief ” but denies that such position was continued pursuant to chapter 225 of the Laws of 1923. The return also admits that this position was in the competitive civil service and that the petitioner was receiving a salary of $4,000. The return then states as a further answer and separate defense that the position in question became unnecessary and was abolished for reasons of economy and retrenchment and that the petitioner was notified accordingly; that his position had been in fact abolished and that he was suspended and was notified that his services would not be required after the termination of business on June 30, 1923; that the State Civil Service Commission was likewise notified that such position was abolished and that the said George M. Spawn had been thereby suspended* from such position; that said notice also gave the date of his original appointment, described the nature of his work and his compensation, and the cause of his suspension. The separate defense further alleges that there is no other position in the State Comptroller’s office which the petitioner might be fitted to fill at the same or any like compensation so received by him to which he could be transferred; that the abolition of such position was made in good faith; that there was no work for said George M. Spawn to perform; that the particular duties performed by him had been distributed and were then being performed by other employees in said office as thereinafter described and that no person had been or would be appointed to the position so abolished and from which said petitioner had been so suspended. As the particular reasons for abolishing such position the return states that since the completion of the Barge canal the work of the Bureau of Canal Affairs had been so constantly decreasing that the Comptroller had become convinced that in the interests of economy and retrenchment there was no reason for maintaining such bureau as a separate bureau in the Comptroller’s office, since all of the work could be done by the Finance Bureau. The names of those persons to whom the work which had formerly been performed by the division chief was transferred were set forth, and a statement made of the economy that had been effected thereby, and it was alleged that by the reorganization of the work in the Comptroller’s office and transferring the personnel of the bureau, the State was saved $31,000. The return also alleges that many other positions were abolished by such reorganization, the names of the positions and of the incumbents thereof were stated and it was also alleged that the work of such Bureau of Canal Affairs was being adequately and properly done by the Finance Bureau. Thereupon the petitioner moved for a peremptory order. The justice held that there were certain issues of fact and made an order that the petitioner’s objections to the Comptroller’s return relative to “ the further answer and separate defense set forth therein ” be sustained and that the respondent’s “ further answer and separate defense ” be dismissed “ as insufficient in law upon the face thereof.” The order, however, directed that the allegations set forth in paragraphs 8, 11, 12 and 13 of the petition by reason of the denial contained in the respondent’s return, be remanded to the Trial Term for determination as is provided by law. The following allegations of the petition having been denied, were treated by such order as being issues of fact. These allegations are as follows:

“ 8. The letter mentioned and described in the Seventh paragraph hereof is the only notice your petitioner has received from the said James W. Fleming as State Comptroller of the State of New York, or any other official of said State, and no charges have been preferred against your petitioner as the incumbent of the position of Division Chief in the Bureau of Canal Affairs in the office of the Comptroller of the State of New York as provided by law. * * *

“11. Nevertheless the said James W. Fleming, State Comptroller of the State of New York, well knowing such facts, did upon the 1st day of July, 1923, wrongfully, unlawfully and unjustly and against your petitioner’s due protest, removed and dismissed your said petitioner from his said position without giving him the opportunity of making an explanation and without cause being shown, charged or existing.

“ 12. That the said James W. Fleming, as State Comptroller of the State of New York, has wrongfully and unlawfully withheld, and now withholds from your petitioner, his said position.

“13. By reason of the premises your petitioner will continue to be wrongfully deprived of his said position and its salary unless this court compels the said James W. Fleming as State Comptroller of the State of New York to perform his duty in the premises.”

The justice at Special Term in granting the alternative mandamus order gave the following opinion: “ As I view it, the position was one created by the Legislature and, therefore, cannot be abolished except by the same agency that created it. People ex rel. Machen v. Hayes, 115 Misc. Rep. 373. Therefore, the relator cannot be dismissed under the provisions of section 22 of the Civil Service Law,* except for incompetency or misconduct shown upon hearing after due notice upon stated charges.”

Later in a separate memorandum the same justice said: “ The position sought to be abolished having been created by statute, although the Comptroller was given the power to fill the same by appointment, could not be abolished by the Comptroller. Therefore, the respondent’s further answer and separate defense set out in the return to the order for alternative mandamus is insufficient in law on the face thereof and I sustain the petitioner’s objection thereto.”

The question raised on this appeal is whether the position of division chief in the Bureau of Canal Affairs in the office of the Comptroller of the State of New York is a position created by the Legislature and is a position which could not be abolished by the Comptroller, without the filing of charges. No question has been raised about the good faith of the Comptroller in abolishing the position in the interest of efficiency and economy. The petitioner claims that this office is a statutory one, first created as auditor for the Canal Department by chapter 162 of the Laws of 1848, which reads as follows: “ There shall be an auditor of the Canal Department, who shall be appointed in the same manner, and receive the same compensation as is now provided by law in relation to the chief clerk of the Canal Department, and the said office of chief clerk of the Canal Department is hereby abolished. * * * All the powers and duties of the chief clerk of the Canal Department, and all the powers and duties of the Comptroller in relation to the canals, except his powers and duties as Commissioner of the Canal Fund, are hereby transferred to, and vested in the said auditor; and the said auditor shall also be secretary of the Commissioners of the Canal Fund, and of the Canal Board.” Chapter 69 of the Laws of 1883 reads as follows:

“ Section 1. The office of auditor of the Canal Department is hereby abolished.

“ § 2. All the powers and duties heretofore exercised by and enjoined upon the auditor of the Canal Department shall hereafter be performed by and incumbent upon the Comptroller, except that any duty now performed by the auditor of the Canal Department as clerk or secretary of any existing board shall be performed by the chief clerk of the Bureau of Canal Affairs hereinafter created, and hereafter there shall be established and maintained in the office of said Comptroller a bureau to be called the Bureau of Canal Affairs, to which bureau shall be transferred all the books, records, papers, archives and furniture of the present office of the auditor of the Canal Department, and the Comptroller may retain so much of the clerical force now in said office hereby' transferred as in his judgment may be necessary, and at such compensation for such services rendered as he may deem just and proper, not exceeding the sum of six thousand dollars.”

By chapter 413 of the Laws of 1901 section 16 was added to the former Canal Law (Gen. Laws, chap. 13; Laws of 1894, chap. 338), and reads as follows: “ The Bureau of Canal Affairs heretofore established in the office of the Comptroller is continued, and the chief clerk of such bureau shall be the secretary of the Commissioners of the Canal Fund and of the Canal Board.”

This section was re-enacted as section 21 of the present Canal Law (Consol. Laws, chap. 5; Laws of 1909, chap. 13), and as amended by chapter 772 of- the Laws of 1913 reads as follows: “ The Bureau of Canal Affairs, heretofore established shall be continued in the office of the Comptroller and the Comptroller shall designate some person in his office to be the secretary of the Commissioners of the Canal Fund and of the Canal Board.”

Section 63 of the State Finance Law (Consol. Laws, chap. 56; Laws of 1909, chap. 58), as amended by chapter 267 of the Laws of 1913, also provides: “ Charges on the canal fund. All moneys expended in the construction, repair or improvement of the canals now authorized by law, or allowed or expended by the Commissioners of the Canal Fund, or the Superintendent of Public Works or other officer or assistant employed on such canals pursuant to law, with the compensation of such officers respectively, including the salary of the Superintendent of Public Works, shall be charged to the canal fund unless otherwise expressly provided by law. The Comptroller shaE also charge to such fund from time to time so much for the services of the clerks in his office, devoted to the accounts and revenues of the canals, as in his opinion is just, and he is hereby authorized in his discretion to transfer from time to time such amounts of the surplus of canal fund to the general fund as may not be needed to meet the expenses incident to the maintenance and repair of canals.”

The General Appropriation BiE, being chapter 225 of the Laws of 1923, had a provision for the appropriation of funds for the Bureau of Canal Affairs in the office of the State Comptroller and under a subdivided heading for such expenses there is a single Ene which reads as follows: “ Division Chief, $4,000.” This the petitioner claims is proof of the creation and continuance of such office to date. We cannot concur in such claim. In no place in any of the laws quoted is there any reference to any office which can be called in name the office of “ Division Chief in the Bureau of Canal Affairs.” Prior to the statute of 1848, above quoted, we find chapter 237 of the Laws of 1816 providing for the appointment of Canal Commissioners and authorizing them to employ such help as might become necessary. Chapter 262 of the Laws of 1816-17 continued said Canal Commissioners and authorized them to commence construction of the Erie and Champlain canals. Said act also provided for the canal fund and directed the management of said fund by a board known as “ Commissioners of the Canal Fund.” These two statutes quoted, although amended and revised, were followed by chapter 162 of the Laws of 1848 and the other laws hereinbefore set forth, and in none of them is the exact name of the office described as in this proceeding. The respondent, however, admits in his return that there was such a position created by law and existing until he abohshed it. The position taken by the petitioner in this proceeding is that the office being a statutory one, the power creating the same is the only power or authority which can aboEsh it. We are of the opinion that the particular position was created by law in the sense that it was a part of a bureau estabEshed within and as a part of the Comptroller’s office. Section 21 of the Canal Law provided that the Comptroller should designate‘‘ some person in his office ” to be secretary of the Commissioners of the Canal Fund. It did not say who should be appointed or that a new office was to be created. The requirement that the chief clerk should be such secretary had been repealed. Therefore while it appears that in June, 1923, in the Bureau of Canal Affairs there was a chief clerk, his duties were not defined but he was a part of an organization designated as the Bureau of Canal Affairs which in turn was a department within the Comptroller’s office. The Comptroller was free by law to organize the department as he chose and to fill the necessary position so created. It is so contemplated by section 63 of the State Finance Law. The Bureau of Canal Affairs did not contemplate that any individual employed therein should be employed exclusively in such bureau. It states so in particular regarding the secretary.'

The Comptroller in his return alleges all that is necessary to state a good defense and a justification for abolishing the office and removing the incumbent. Such action was for the good of the service. He acted in good faith. His action was justified by the results. He distributed the work among other employees. He created no new office.

In People ex rel. Davison v. Williams (213 N. Y. 130) it is held that the head of the department “ had the right to reduce the number of laborers, and in so doing suspend the relator from duty; but if he increased the number at the same moment that he reduced it, his duty was to transfer the relator to the position thereby created.” The court in the Davison case further said: “ The statute gives to such a fireman a right to be protected against arbitrary removal by requiring notice and a hearing where it is sought to oust him from his position in order to give it to another. But where a reduction of employees becomes necessary, the statute does not require that a fireman’s position shall be continued, and that the positions of others not firemen shall be terminated. To make out the right to such a preference, an employee must be able, to put his finger upon the precise provision of the statute which secures it to him. This the relator cannot do.” The foregoing quotation is peculiarly applicable to the case at bar because there is no provision of the statute which secures to petitioner • the position which he seeks nor is there any evidence of the creation of such a position.

It was held in People ex rel. Cline v. Robb (126 N. Y. 180): “ With respect to the tenure or duration of a public employment such as the relator had at the time of his dismissal, the general rule is that where the power of appointment is conferred in general terms and without restriction, the power of removal, in the discretion and at the will of the appointing power, is implied and always exists, unless restrained and limited by some other provision of law.”

In that case it appeared that the power was given to the commissioners of public parks of New York city to organize and appoint a force of special policemen to consist of such number of men as they from time to time deemed necessary to preserve order in the public parks in the city. It was held that they had the power of dismissal. (See, also, People ex rel. Ryan v. Wells, 178 N. Y. 135, and People ex rel. Percival v. Cram, 164 id. 166.)

It is said in Matter of Colligan v. Williams (91 Misc. Rep. 128) as follows: “ It cannot be doubted that the head of a department may under the Civil Service Law reduce the number of positions in his department, suspend the incumbents thereof and assign their duties to other employees.” This is exactly what was done in the present case.

In People ex rel. Kaufman v. Board of Education (166 App. Div. 58) it is said: “ When the city officials can decrease the number of employees by distributing their work among others of the force it is their duty so to do.” See, also, People ex rel. Vineing v. Hayes (135 App. Div. 19) where it is said: “ If the position * * * was not a necessary one, then it was the duty of the commissioner to abolish it, and if there was no work for [the petitioner] to do, or if his work could be divided among others then employed, it was also his duty in the interest of economy to abolish it.” (See People ex rel. Corrigan v. Mayor, etc., 149 N. Y. 215; People ex rel. Chappel v. Lindenthal, 173 id. 524; People ex rel. Traphagen v. King, 13 App. Div. 400; Matter of Reilly v. Smith, 92 Misc. Rep. 309.)

It is also the law that “ a position may be abolished for good and sufficient reasons without giving notice to the occupant or affording him an opportunity to explain or without a formal hearing upon charges, if it be done in good faith and in the public interest.” (People ex rel. O’Donnell v. Bermel, 51 Misc. Rep. 77; Matter of Breckenridge, 160 N. Y. 103; Matter of Jones v. Willcox, 80 App. Div. 167.)

In People ex rel. Machen v. Hayes (115 Misc. Rep. 377), which is quoted by Mr. Justice Nichols, it is stated that in the absence of any direct statutory provision to the contrary, a position can be abolished only by the same agencies that created it and, therefore, from a technical point of view, a position as distinguished from the incumbent or salary attached thereto, is not abolished until appropriate action to that effect is taken by such a contingency.

In citing this case Mr. Justice Nichols assumed that this particular position was established by the Legislature. There is no evidence that such was the case. It was a part of the clerical force of the Canal Bureau appointed by the Comptroller.

The paragraphs of the petition (8, 11, 12 and 13) which are the subject of the order for a trial do not raise any questions of fact. They are propositions of law disposed of by the return.

The order should be reversed on the law, with costs, and the motion denied, with ten dollars costs.

All concur, except Hinman, J., dissenting, with an opinion in which Cochrane, P. J., concurs.

* Amd. by Laws of 1920, chap. 833.— [Rep.